{’OXOUESS f 
/'I'i‘'iission \ 


^ATE 


( Document 
} No. J05 


WAR POWERS UNDER THE 
-.. CONSTITUTION 


ADDRESS 

DELIVERED BEFORE THE AMERICAN BAR ASSOCIATION AT ITS 
ANNUAL MEETING HELD AT SARATOGA, N. Y. ON 
SEPTEMBER 4. 5, and 6, 1917 


By 

HON. CHARLES E. HUGHES 

’/ 

FORMER JUSTICE OF THE UNITED STATES SUPREME COURT 





pRFqr-™ kY MR. M- IN 

Sf^ " \rred to the Committee on Printing 


SON 

\nG OFnCE 






















SENATE RESOLUTION NO. 134. 

[Reported by Mr. Sinitb of Arizona.) 


In the vSenate op the United States, 

September 20, 1917. 

Resolved, That the address submitted by the Senator from Vir¬ 
ginia (Mr. Martin), on September 11, 1917, entitled “The Fighting 
Powers of the United States under the Constitution,^’ by Hon. 
Charles E. Hughes, former Justice of the Supreme Court of the 
United States, be printed as a Senate document . 

Attast: 

James M. Baker, Secretary. 



2 


D. of D. 

OCT 15 1917 




WAR POWERS UNDER THE CONSTITUTION. 


(Address of Charles E. Hughes, former Justice of the Supreme Court, before (he American Bar 

Association.) 

THE FRAMERS OF THE CONSTITUTION Dill NOT CONTRIVE AN IMPOSING 
SPECTACLE OF IMPOTENCY—WE ARE MAKING WAR AS A NATION 
ORGANIZED UNDER THE CONSTITUTION * * * a NATION WHICH 

COULD NOT FIGHT WOULD BE POWERLESS TO SECURE ‘‘THE BLESSINGS 
OF IJBERTY TO OURSELVES AND OUR POSTERITY/' 


ill the unusual circumstances of war, it is natural that there should 
be some confusion with res{)ect to the constitutional warrant for 
extraordinary action taken or contemplated. Some altogether mis¬ 
conceive the constitution. Others vaguely fear that we are serving 
temporary exigency at the expense of our fundamental law, and that 
we are thus breeding a lawless constitution-ignoring spirit which is a 
serious menace to our future. Others seek to raise doubts of power 
in order to embarrass the prosecution of the war. And there seem 
to be still others who in their zeal impatiently and without thought put 
the constitution aside as having no relation to these times. 


CONSTITUTIONAL GOVERNMENT IN WAR. 

While we are at war we are not in revolution. We are making war 
as a nation organized under the constitution, from which the estab¬ 
lished national authorities derive all their powers either in war or in 
peace. The constitution is as effectiv^to-day as it ever was and the 
oath 
tutio 
the c 
mon 

secure “the Blessings of Liberty to Ourselves and our Posterity.” 
Self-preservation is the first law of national life and the constitution 
itself provides the necessary powers in order to defend and preserve 
the United States. Otherwise, as Mr. Justice Story said, “ the country 
would be in danger of losing both its liberty and its sovereignty from 
its dread of investing the public councils with the power of defending 
it. It would be more willing to submit to foreign conquest than to 
domestic rule.” 

DISTRIBUTION OF POWERS. 


to support it IS just as binding. But the iramers ot the consti- 
n did not contrive an imposing spectacle of impotency. One of 
bjects of a “more perfect Uniom' was “to provide for the corn- 
defense.” A nation which could not fight would be powerless to 


The war powers under the constitution are carefully distributed. 
To Congress is given the power “to declare war.” The proposal to 
add “to make peace” found no favor, as this was deemed to belong 
to the treaty-making power vested in the President and the Senate. 
To the President was given the direction of war as the Commander in 
Chief of the Army and Navy. It was not in the contemplation of the 
constitution that the command of forces and the conduct of cam- 

E aigns should be in charge of a council or that as to this there should 
e a division of authority or responsibility. The prosecution of war 
demands in the highest degree the promptness, directness, and unity 
of action in military operations which alone can proceed from the 

3 


4 


WAR POWERS UNDER THE CONSTITUTION. 


/ 

Executive. This exclusive power to command the army and navy, 
and thus to direct and control campaigns, exhibits not autocracy 
but democracy fighting effectively through its chosen instruments ana 
in accordance with the established organic law. 

PLENARY POWER TO WAGE WAR. 

While the President is Commander in Chief, in the Congress 
resides the authority “to raise and support Armies’' and “to provide 
and maintain a Navy” and “to make Rules for the Government 
and Regulation of the land and naval Forces,” and as a safeguard 
against military domination the power to raise and support armies 
is qualified by the provision that “no appropriation of Money to 
that Use shall be for a longer term than two Years.” Otherwise 
this power is un'imited. The Congress is to prescribe the military 
organizations and provide the military establishment, fix numbers, 
regulate equipment, afford maintenance, and for these purposes 
appropriate such amounts of money as it thinks necessary. 

POWER TO PASS CONSCRIPTION LAWS. 

Upon every citizen lies the duty of aiding in the common defense. 
In exercising its constitutional power to raise armies the Congress 
may enforce this duty. The Congress may caU anyone to service 
who is able to serve. The question who may be called, or in what 
order, is simply one for the udgment of the National Legislature. 
The power vested in Coiyress is not to raise armies simply by calling 
for volunteers, but to raise armies by whatever method Congress 
deems best, and hence must be deemed to embrace conscription. 
To the framers of the constitution the draft was a familiar mode of 
raising armies, as it had been resorted to by the colonies to fill up 
their c^uotas in the Revolutionary War. It is true that the proposal, 
in 1814, of Monroe, as Secretary of War, to resort to conscription 
was vigorously opposed as unconstitutional. But the draft was put 
in force both by the Union and by the Confederacy durmg the Civil 
War, and its validity was sustained by the courts in both North and 
South.^ “The power of coercing the citizen,” said Judge Robertson, 
of Virginia, in Burroughs v. Peyton, 16 Gratt., 470 (1864), “to render 
military service, is indeed a transcendent power in the hands of any 
government; but, so far from being inconsistent with liberty, it is 
essential to its preservation.” 


LINCOLN S (.‘PINION. 


Permit me to quote upon this (iuestion the opinion prepared 
(although not published) by President Lincoln, which sets forth 
admirably the grounds for sustaining the power of Congress to pass 
a Conscription Act: 


“In this case, th')8e who desire the rebellion to succeed, and others who seek reward 
in a different way, are very active in acc-ommodating us with this class of arguments. 
They tell us the law is unconstitutional. It is the lirst instance, I believe, in which 
the power of Congress to do a thing has ever been questioned in a case when the pow v.r 


. ! ^ 238; McCall's' Case, Fed. Cas. No. 8669; Ex Parte Hill 38 

Ala. 429; Ex Parte Bolling, Ala. 609; Jeffers w Fair, 33 Ga. '647, Barber v. Irwin, 34 Ga. 28; Parker v. 





WAB POWERS UNDER THE CONSTITUTION. 


5 


is given by the Constitution in express terms. Whether a power can be implied 
when it is not expressed has often been the subject of controversy; but this is the 
first case in which the degree of effrontery has been ventured upon of denying a 
power which is plainly and distinctly written down in the Constitution. The Con¬ 
stitution declares that ‘The Congress shall have power ... to raise and sup¬ 
port armies; but no appropriation of money to that use shall be for a longer term 
than two years.’ The whole scope of the conscription act is ‘to raise and support 
armies.’ There is nothing else in it. ... Do you admit that the power is 
eiven to raise and support armies, and yet insist that by this act Congress has not 
exercised the power in a constitutional mode? has not done the thing in the right 
w'ay? Who is to judge of this? The Constitution gives Congress the powder, but it 
doe^i not prescribe the mode or expressly declare who shall prescribe it. In such case 
( ongress must prescribe the mode, or relinquish the power. There is no alternative. 

. . . The power is given fully, completely, unconditionally. It is not a power 

to raise armies if Stale auihurities consent; nor if the men to compose the armies 
are entirely willing; but it is a powder to raise and support armies given to Congress 
by the Constitution without an ‘if.’ . . . The principle of the draft, which 

simply is involuntary or enforced service, is not new. It has been practiced in all 
ages of the world. It was w^ell known to the framers of our Constitution as one of 
the modes of raising armies, at the time they placed in that instrument the provision 
that ‘the Congress shall have powder to raise and suppori armies.’ . . . Wherein 

is the peculiar hardship now’? Shall we shrink from the necessary means to maintain 
our free government which our grandfathers employed to establish it and our own 
fathers have already employed once to maintain it? Are we degenerate? Has the 
manhood of the race run out?”^ 

These are the words of Lincoln, penned in the midst of the Civil 
War, in which conscription was enforced, and his reasoning is con¬ 
clusive. And while the question was not presented to the United 
States Supreme Court, the power of Congress was explicitly recog¬ 
nized in Tarhle’s Case,^ and in later opinions.® 

CONSCIENTIOUS OBJECTORS. 

The constitutional authority thus vested in Congress is not limited 
by any qualification arising from religious beliefs or conscientious 
objections. These are matters not affecting power, but policy. 
As Mr. Justice Harlan said, in delivering the opinion of the Supreme 
.Court in Jacobson v. Massachusettes,* *^ one ‘‘may be compelled, by 
force if need be, against his will and without regard to his personal 
wishes or his pecuniary interests,.or even his religious or political 
convictions, to take his place in the ranks of the army of his country, 
and risk the chance of being shot down in its defense.” It is, how¬ 
ever. in my judgment, a sound policy on the part of Congress to 
provide for the discharge from the draft of conscientious objectors. 
Nothing, I believe, is gained for the country by overriding the chums 
of conscience in such cases; but it is obviously necessary that there 
should be such definitions and restrictions as will prevent imposture 
and evasion by those who have as little conscience as they have 
stomach for war. 

THIRTEENTH AMENDMENT. 

It is now contended in some quarters that this power, which 
undoubtedly Congress had, has been restricted or abolished by the 
Thirteenth Amendment, which was adopted after the close of the 
Civil War. This amendment provides that “Neither slavery nor 


1 Lincoln’s Works, Vol. II, p. 388. 

* 13 Wall. 397 408. 

»See In re Grimley, 137 U. S, 147, 153; Jacobson v. Massachusetts, 197 U. S. 11, 29. 
< 197 U. 8. p. 29. 





6 


WAR POWERS UNDER THE CONSTITUTION. 


involuntary servitude, except as a punishment for crime whereof the 
party shall liave been duly convicted, shall exist within the United 
States or any place subject to their jurisdiction.'^ It has been said 
by the United States Supreme Court that the plain intention ‘'was 
to abolish slavery of whatever name and form and all its badges and 
incidents; to render impossible any state of bondage; to make labor 
free by prohibiting that control by which the personal service of one 
man is disposed of or coerced for another's benefit, which is the 
essence of involuntary servitude.” It hits not only slavery but 
peonage. But the language of the amendment was not new. It 
reproduced the historic words of the Ordinance of 1787 for the Gov¬ 
ernment of the Northwest Territory, and its terms, construed in the 
light of its history and plain purpose, afford no basis whatever for 
the conclusion that it interfered in the slightest degree with the power 
of Congress to raise and support armies. 

In tile case of Robertson v. Baldwin ^ it was argued that 
the Thirteenth Amendnient invalidated certain provisions of the 
Revised Statutes authorizing justices of the peace to issue war¬ 
rants for deserting seamen. In denying the claim the court said 
It is clear, however, that the amendment was not intended to intro¬ 
duce any novel doctrine with respect to certain descriptions of service 
which have always been treated as exceptions, such as military and 
naval enlistments.” The soldier drafted mider the Act of Ct-j-gress 
is performing the duty which he owes of aiding in the common 
defense, and the constitutional amendment contemplates no escape 
from the duty to defend and preserve the United States. 

POWER OVER THE MILHIA. 

The power to raise and support armies’' should not be confused 
with the power given to Congress provide for calling forth the 
Militia to execute the Laws of the Union, suppress Insurrections, and 
repel Invasions”; and “to provide for organizing, arming, and dis¬ 
ciplining the Militia, and for governing sudi Part of them as maybe- 
employed in the Service of the United States, reserving to the States 
respectively the Appointment of the Officers and the Authority of 
training the Militia according to the discipline prescribed by Congress.” 
The President is Commander in Chief not only of “the Army and 
Navy of the United States,” but also “of the Militia of the several 
Sti.tes, when called into the actual Service of the United States.” 

'^e militia, within the meaning of these provisions of the consti¬ 
tution, is distinct from the Army of the United States. “ Remember 
always,” said Daniel Webster, “that the great principle of the Con¬ 
stitution on that subject is that the militia is the militia of the States 
and not of the general government; and being thus the militia oi 
the States, there is no part of the Constitution worded with greater 
care, and with a more scrupulous jealousy, than that which grants 
and limits the power of Congress over it.” 

In order to execute the laws of the Union, to suppress insurrection 
and to repel invasions, it would be necessary to employ regular 
troops or to employ the militia. And the power given to Congress 
with respect to the militia was manifestly to make a large standing 
army unnecessary. But as the service of the organized militia can 


1165 U. S. 275. 



WAR POWERS UNDER THE CONSTITUTION. 


7 


(/uly be required by the National Government for the limited pur¬ 
poses specified in the constitution, it follows (as Attorney General 
Wickei-sham advised President Taft)^ that the organized militia, as 
such, can not be employed for offensive warfare outside the limits 
of the United States. 


xMAY SEND ARMY ABROAD. 

This, however, is apart from the power of Congress to raise and 
support a federal army. Congress may be content with a smrll 
st: nding army in ordinary times, but Congress may create and equip 
such army as it pleases, subject to the qualification with respect to 
approprixAions. It can equip an army in preparation for war, and 
oi course it may furnish whatever army is required for the prosecu¬ 
tion of war. The organiza tion and service of an army raised by Con¬ 
gress are not subject to the limititions governing its control of the 
militia The power to use an army is coextensive with the power to 
make war; and the arnw may be used wherever the war is carried 
on, here or elsewhere. There is no limitation upon the authority of 
Congress to create an army and it is for the President as Commander- 
in-Chief to direct the campaigns of that army wherever he may think 
the}' should be carried on. As Chief Justice Taney, speaking for the 
Supreme Court in Fleming v. Pagej^ said: 

“As Commandei‘-iii-( hief he is authorized to direct the movements of the naval and 
military forces placed by law at his command, and to employ them in the manner 
he may deem most effectual to harass and conquer and subdue the enemy. He may 
invade the hostile country and subject it to the sovereignty and authority of the 
United States.” 

We employed our arms in Canada in the War of 1812 ; our troops 
were again sent to foreign soil in the Mexican War and in the War 
with Spain, and more recently have been employed in China and 
Mexico. There is no doubt of the constitutional authority to employ 
our forces on the battle fields of Europe in the war that we are now 
waging for the safety of the United States and to conquer an enduring 
peace that the liberties of free peoples throughout the world may 
forever be s(>cure from the aggressions of unscrupulous military 
power. 

POWER TO WAGE WAR SUCCESSFULLY. 

The power to wage war is the power to wage war successfully. 
The framers of the Constitution were under no illusions as to war. 
They had emerged from a long struggle which had taught them the 
weakness of a mere confederation, and they had no hope that they 
could hold what they had won save as they established a Union 
which could fight with the strength of one people under one govern¬ 
ment intrusted with the common defense. In equipping the National 
Government with the needed authority in war they tolerated no 
limitations inconsistent with that object, as they realized that the 
very existence of the Nation might be at stake and that every resource 
of the people must be at command. Said Madison in the federalist: 
‘^Security against foreign danger is one of the priraitiv(^ objects of 
civil society. It is an avowed and essential object of the American 

-9 How. p. 6J5. 


> 29 Ops. Attorney General, 322; see Martin v. Mott, 12 Wheat. 19. 



8 


WAR POWERS UNDER THE CONSTITUTION. 


Union. The powers requisite for attrinin^ it must be effectually 
confidecl to the Federal councils.’’^ And Hamilton said: ‘^’The idea 
of restraining the legisla tive authority, in the means of providing for 
the national defense, is one of those refinements which owe their 
origin to a zeal for liberty more ardent than enlightened.’’^ He again 
emphasizes the same idea in these words: ‘‘The circumstances that 
endanger the safety of nations are infinite, and for this reason no 
constitutional shackles can wisely be imposed on the power to which 
the care of it is committed. This power ought to be coextensive 
with all the possible combinations of such circumstinces and ought 
to be under the direction of the same councils which are appointed 
to preside over the common defense.”^ 

It was in this view that plenary power was given to Congress to 
wage war and raise armies. It is also in the light of this conception 
of national exigencies that we must read subdivision 18 of section 8 
of Article I of the constitution (following the enumeration of powers), 
which gives Congi’ess the authority “to make all laws which shall 
be'necessary and proper for carrying into Execution the foregoing 
Powers and all other Powers vested by this Constitution in the 
Government of the United States, or in any Department or Officer 
thereof.” It must also be remembered that it is of the essence of 
national power that where it exists it dominates. There is no room 
in our scheme ot government for the assertion of state power in 
hostility to the authorized exercise of federal power. The power of 
the National Government to carry on war is explicit and supreme, 
and the authority thus resides in Congress to make all laws which are 
needed for that purpose; that is, to Congress in the event of war is 
confided the power to enact whatever legislation is necessafy to 
prosecute the war with vigor and success, and this power is to be 
exercised without impairment of the authority committed to the 
President as Commander-in-Chief to direct military operations. 

POWER OF THE PRESIDENT. 

Each of these powers, that of Congress and of the Presklent, is the 
subject of a distinct grant; each is the complement of the other, and 
together they furnish the adequate equipment of authority for war. 
There is no inore impressive spectacle than that of the President of 
the liepublic in time of war when in addition to the other great 
powers of his office he acts in supreme command of the armed forces 
of the Nation and conducts its military campaigns. It was under 
this power that President Lincoln defended the proclamation of 
emancipation. It related to those held as slaves in the States in 
rebellion, and he regarded it, as it recited, as a necessary act of war 
within his authority as Commander-in-Chief. He thus expressed this 
point of view: 

“You say it is unconstitutional. I think differently. I think the Constitution 
invests its Conimander-in-Chief with the law of war in time of war. The most that 

can be said—is so much—is that slaves are property. Is there—has there ever been_ 

any question that by the law of war, property, both of enemies and friends, may be 
taken when needed? And is it not needed whenever taking it helps us or hurts the 
enemy? Armies, the world over, destroy enemies’ property when they can no use 
it, and even destroy their own to keep it from the enemy.’’ * 


1 Federalist, No. XLI. 

2 Id. No. XXVI. 


Ud., No. xxin, 

^I.iiu-oln’s Work'^. Vol. II, p. 397. 





WAR POWERS UNDER THE CONSTITUTION. 9 

It is nlsf) to bo observed that the power exercised by the President 
in tihie of war is greatly augmented outside of his functions as Com- 
2ftaNdoz-in-Chief through legislation of Congress increasing his ad¬ 
ministrative authority. War demands the highest degree of efficient 
organization, and Congress in the nature of things can not prescribe 
mmiy important details as it legislates for the purpose of meeting the 
exigencies of war. Never is adaptation of legislation to practical 
ends so urgently required, and hence Congress naturally in very large 
measure confem upon the President the authority to ascertain and 
determine various states of fact to which legislative measures are 
addressed. Further, a wide range of provisions relating to the or¬ 
ganization and government of the army and navy which Congress 
might enact if it saw fit, it authorizes the President to prescribe. 
The principles governing the delegation of legislative power are clear, 
and while they are of the utmost importance when properly ap- 

f )lied, the}" are not such as to make the appropriate exercise of legis- 
ative power impracticable. ‘‘The Legislature can not delegate its 
power to make a law, but it can make a law to delegate a power to 
determine some fact or state of things upon which the law makes, or 
intends to make, its own action depend. To deny this would be to 
stop the wheels of government. There are many things upon which 
wise and useful legislation must depend which can not be known to 
the lawmaking power, and must, therefore, be a subject of inquiry 
and determination outside of the halls of legislation.’’ ^ Congress can 
not be permitted to abandon to others its proper legislative functions: 
but in time of war, when legislation must be adapted to many situ¬ 
ations of the utmost complexity, which must be dealt with effectively 
and promptly, there is special need for flexibility and for every 
r^^urce of practicality; and of course whether the limits of per- 
n^sible delegation are in any case overstepped always remains a 
judicial question. We thus not only find these great war powers 
confeiTcd upon the Congress and the President, respectively, but also 
a^vast increase of administrative authority through legislative action 
springing from the necessities of war. 

OTHER PROVISIONS OF THE CONSTITUTION-TAXING POWER. 

Idle question remains: What may be deemed to bo the force and 
etfect in time of war of the restrictive provisions contained in the 
Constitution with respect to the exercise of federal authority? It 
is manifest at once that the great organs of the National Government 
retain and perform their functions as the constitution prescribes. 
Senators and Representatives are qualified and chosen as provided 
in the constitution and the legislative power vested in the Congress 
must be exercised in the required manner. The President is still the 
constitutional Fxecutive, elected in the manner provided and subject 
to the restraints imposed upon his office. The judicial power of the 
(Tnited States continues to be vested in one Supreme Court and such 
inferior courts as Congress has ordained. Again, apart from the 
provisions fixing the framework of the Government, there are limi¬ 
tations which by reason of their express terms or by necessary im¬ 
plication must be regarded as applicable as well in war as in peace. 
Thus one of the expressed objects of the power granted to Congress “to 


‘ See Field v. Clark, 143 U. S. 649, (i<M. 




10 


J 

WAR POWERS UNDER THE CONSTITUTION. 

lay and collect Taxes, Duties, Imposts, and Excises’’ is to ^‘provide 
for the common defense,” and it can not be doubted that taxes laid 
for this purpose, that is, to support the arm}^ and navy to 
provide the means for military operations, must be laid subject to 
the constitutional restrictions. That is, all duties, imposts, and 
excises must be uniform throughout the United States, and direct 
taxes must bo apportioned among the States according to population. 
And b}^ the Sixteenth Amendment, providing that income taxes, from 
whatever source derived, may be laid without apportionment among 
the States, these taxes fall into the great class of excise duties and 
imposts and are alike subject to the rule requiring geographical 
imiformit^q a requirement operative in war as well as in peace. 

TREASON. 

The provisions as to treason are also clearly applicable in war: 

“Treason against the United States shall consist only in levying War against them 
or in adhering to their Enemies, giving them Aid and Comfort.” 

And— 

“The Congress shall have power to declaie the Punishment of Treason, but no 
Attainder of Treason shall work Corruption of Blood or Forfeiture except during 
the Life of the Person attainted.” 

FIFTH AND SIXTH AMENDMENTS. 

But what shall be said of the efficacy in time of war of the great 
guaranties of personal and property rights ? It would be impossible 
on this occasion to discuss comprehensively this important subject, 
or even to refer to all these guaranties, but we may briefly touch 
upon the question in its relation to the Fifth and Sixth Amend¬ 
ments, viz: 

“No person shall be held to answer for a capital or otherwise infamous crime unless • 
on a presentment or indictment of a Grand Jury, except in cases arising in the land 
or naval forces, or in the Militia, when in actual service in time of War or public- 
danger; nor shall any person be subject for the same offense to be twice put in jeopardy 
of life or limb; nor shall be compelled in any criminal case to be a witness against 
himself, nor be deprived of life, liberty, or property without due process of law; nor 
shall private property be taken for public use without just compensation. 

“In all criminal prosecutions the accused shall enjoy the right to a speedy and 
public trial by an impartial jury of the State and district wherein the crime shall 
nave been committed, which district shall have been previously ascertained by law, 
and to be informed of the nature and cause of the accusation; to be confronted with 
the witnesses against him; to have compulsory process for obtaining witnesses in his 
favor, and to have the Assistance of Counsel for his defense.” 

Clearly these Amendments, normally and perfectly adapted to 
conditions of peace, do not have the same complete and universal 
application in time of war. Thus the Fifth Amendment normalh^ 
gives its protection to ‘^any person.” But in war this must yield to 
the undoubted national power to capture and confiscate the property 
of enemies. This was distinctly ruled by the Supreme Court in 
Miller v. United StatesU a proceeding brought under the confis¬ 
cation acts of 1861 and 1862 to confiscate shares of stock owned bv 
Miller, a Virginian, in a Michigan corporation. The court said: 

“if the act of 1861, and the fifth, sixth, and seventh sections of the act of July 17,1802. 
were municipal regulations only, there would be force in the objection that Congre.^' 
has disregarded the restrictions of the fifth and .sixth amendments of the C.'onstitiition. 

' if, on the contrary, they are an oxerrise of the war powers of the government. 


1 11 Wall, 208, 304-305. 




WAli POWERS UNDEli THE COKSTJTUTION. 


11 


it is clear they are not atfected by the restrictions imposed by the fifth and sixth 
amendments. This we understand to have been conceded in the argument. The 
(juestion, therefore, is, whether the action of Congress was a legitimate exercise of the 
war power. The Constitution confers upon Congress expressly power to declare war, 
grant letters of marque and reprisal, aiicl make rules respecting captures on land and 
water. Upon the exercise of these powers no restrictions are imposed. Of course 
the power to declare war involves the power to prosecute it by all means and in any 
manner in which war may be legitimately prosecuted. It therefore includes the 
right to seize and confiscate all property of an enemy and to dispose of it at the will of 
the captor. This is and always has been an undoubted belligerent right.” 

MARTIAL LAW. 

Again, in the place where actual military operations are being 
conducted, the ordinary rights of citizens must yield to paramount 
military necessity. This was conceded in Milligan’s case/ where 
it was said in the prevailing opinion: 

“If in foreign invasion or civil war the courts, are actually closed, and it is impossible 
to adrninister criminal justice according to law, then, on the theater of actual military 
operations, where war really prevails, there is a necessity to furnish a substitute for 
the civil authority, thus overthrown, to preserve the safety of the army and society; 
and as no power is left but the military, it is allowed to govern by martial rule until 
the laws can have their free course.” 

A different question, however, is presented with respect to the 
rights of citizens, and others not enemies, in places which are outside 
the actual theater of war. It was upon the question of the power of 
Congress to provide for the trial of citizens by military commission 
in such places that the justices sharply divided in the noted case of 
Milligan? He was a citizen of Indiana, who had been tried by a 
military commission at Indianapolis on a charge of aiding the enemy 
and conspiring against the Government, and had been sentenced to 
be hung. He was not a resident of one of the rebellious States, nor a 
prisoner of war, and he had not been in the military or naval service. 
The Court was unanimous in the opinion that under the terms of the 
Act of Congress creating the commission it had no jurisdiction. But 
the majority of the court went further and declared that'Congress 
was without power to provide for the trial of citizens by military 
commissions save in the locality" of actual war and when there was 
no access to the courts. Maintaining with eloquent emphasis the 
guaranties of freedom contained in the Fifth and Sixth Amendments, 
the majority of the court asserted tl.at— 

“Martial law can not arise from a tlireateneU iiivatiioii. The necessity must be 
actual and present, the invasion real, such as effectually closes the courts and deposes 
the civil administration. , . . Martial rule can never exist where the courts 

are open, and in the proper and unobstructed exercise of their jurisdiction. It is 
also confined to the locality of actual war.” 

The minority of four justices, led by Chief Justice (Hiase, while 
agreeing that there was no jurisdiction in Milligan’s case under the 
Act of Congress, strongly insisted that Congress in time of war had 
the power to provide for the punishment of citizens, charged with 
conspiracy against the United States by military tribunals, if it was 
deemed necessary for the public safety. Deducing this view from 
the war powers conferred by the Constitution, the Chief Justice said: 

“Where peace exists the laws of peace must prevail. What we do maintain is that 
when the Nation is involved in war, and some portions of the country are invaded, 
and all are exposed to invasion, it is within the power of ('ongress to determine to 


1 4 Wall, 2, 127. 


-4 Wall, 2. 




12 


WAR POWERS UNDER THE CONSTITUTION. 


what states or districts such great and imminent public danger exists as justifies the 
authorization of military tribunals for the trial of crimes and offenses against the dis¬ 
cipline or security of the army or against the public safety. * * * The fact that 
the Federal Courts were open was regarded by Congress as a sufficient reason for not 
exercising the power: but that fact could not deprive Congress of the right to exercise, 
it. These courts might be open and undisturbed in the execution of their functions 
and yet wholly incompetent to avoid threatened danger, or to punish with adequate 
promptitude and certainty the guilty conspirators. ... In times of rebellion 
and civil war it may often happen, indeed, that judges and marshals will be in active 
sympathy with the rebels and courts their most efficient allies. ... It was for 
Congress to determine the question of expediency.” 

Pi'of. Willoughby, in a careful review of the Milligan case,^ regards 
the doctrine of the majority as essentially sound, that the necessity 
justifying martial law may not be created by legislative fiat. But 
he suggests that the majority went too far in the absolute declara¬ 
tion that martial law can not arise from ‘‘a threatened invasion,’’ 
and that the mere fact that the courts are open, regardless of all 
other conditions, is a conclusive test. ^‘The better doctrine,” says 
Willoughby, is not for the courts to attempt to determine in advance 
with respect to any one element what does, what does not, create a 
necessity for martial law, but, as in all other cases of the exercise of 
olTicial authority, to test the legality of an act by its special circum¬ 
stances.” 

Certainly, the test should not be a mere physical one, nor should 
substance be sacrified to form. The majority recognized “a neces¬ 
sity to furnish a substitute for the civil authority,” when overthrown, 
in order “to preserve the safety of the army and society.” If this 
necessity actually exists it can not be doubted that the power of the 
Nation is adequate to meet it, but the rights of the citizen may not 
be impaired by an arbitrary legislative declaration. Outside the 
actual theater of war, and if, in a true sense, the administration of 
justice remains unobstructed, the right of the citizen to normal 
judicial procedure is secure. 

citizen’s rights of property. 

Furthei, with respect to the citizen’s rights of property, a dis¬ 
tinction may be taken between the unavoidable deprivations which 
take place where the conflict rages, and those takings, altliough for 
military purposes, which are deliberate appropriations for which com¬ 
pensations must be made. As was said by the Supreme ('ourt in 
United States v Russell.'^ 

“Private property, the ('onstitution provides, shall not be taken for public use 
without just compensation. . . . Extraordinaiy and unforeseen occasions l rise, 

ho'wever, beyond all doubt, in cases of_ extreme necessity in time of war or of 
immediate and impending public danger, in which private property may be impressed 
into the public service, or may be seized or appropriated to the Jmblic use, or may 
even be destroyed without the consent of the owner. . . . Where such an extra 

ordinary and unforeseen emergency occurs in the public service in time of war no 
doubt is entertained that the power of the government is ample to supply for the 
moment the public wants in that way to the extent of the immed iate public exigency, 
but the public danger must be immediate, imminent, and impending, and the emer¬ 
gency in the public service must be extreme and imperative and such as will not 
admit of delay or a resort to any other source of supply. . . . Such a justifica¬ 

tion may be shown, and when shown the rule is well settled that the ofiicer taking 
private property for such a purpose, if the emergency is fully proved, is not a tres¬ 
passer, and that the government is bound to make full compensation to theownier.” 


1 2 Willoughby on the Constitution, p. 1251. 


13 Wall., 623, 627-628. 





WAR POWERS UKDER THE CONSTITUTION. 


13 


REASONABl.E REGULATIONS TO INSURE SUCCESS IN WAR. 


Distinct from such requisitions from individuals is the necessary 
regulation of the use of property to secure the successful prosecution 
of the war. We are witnessing a new phase of the exercise of war 
powers. But the applicable principle to determine the validity of 
such action is not new. Even in times of peace we are familiar with 
the principle of regulation which extends to callings ‘Siffected with 
a public interest.The Supreme Court, after reviewing the deci¬ 
sions, recently said: 

“They demonstrate that a business, by circumstances and its nature, may rise 
from private to be of public concern and be subject, in consequence, to governmental' 
regulation. And they demonstrate . . . that the attempts made to place the 

right of public regulation in the cases in which it has been exerted, and of which 
we have given examples, upon the ground of special privilege (‘onferred by the public 
on those affected can not be supported. ‘The underlying principle is that business 
oi.^tain kinds holds such a peculiar relation to the public interest that there is 
g^j«induced upon it the right of public regulation.’ ” * ^ 

extraordinary circumstances of war may bring particular 
d)l^\ess and enterprises clearly into the category of those wldch are 
hiSi^ted with a public interest and which demand immediate and 
tltoroughgoing public regulation. The production and distribution 
of foodstuffs, articles of prim.e necessity, those which have direct 
relation to military efficiency, those which are absolutely required 
for the support of the people during the stress of conflict, are plainly 
of this sort. Reasonable regulations to safeguard the resources 
upon which we depend for military success must be regarded as 
being within the powers confided to Congress to enable it to prosecute 
a successful war. In the words of the Supreme Court: 


“It is also settled beyond dispute that the Constitution is not self-destructive. 
In other words, that the power which it confers on the one hand it does not imme¬ 
diately take away on the other. . . . ” ^ 


This was said in relation to the taxing powers. Having been 
granted in express terms, the Court held it had not been taken awa}^ 
by the due process clause of the Fifth Amendment. As the Supreme 
Court put it in another case: 

■‘the Constitution does not conflict with itself by conferring upon the one hand a 
taxing power and taking the same power away on the other by the limitations of the 
due process clause.” ^ - 


Similarly, it may be said that the power has been expressly given 
to Congress to prosecute war and to pass all laws whicli shall be 
necessary and proper for carrying that powder into execution. That 
power explicitly conferred and absolutdy essential to the safety of 
the Nation is not destroyed or impaired by any later provision of 
the constitution or by any one of the amendments. These may all 
be construed so as to avoid making the constitution self-destructive, 
s(^s to preserve the rights of the citizen from unwarrantable attack, 
v^Se assuring beyond all hazard the common defense and the per- 
p^fcity of our liberties. These rest upon the preservation of the 


Y^. u .1' 


1 German Alliance Ins. Co. v. Kansas, 233 U. S., 
i Billings v. United States, 232 U. S., 261, 282. 
Brushaber v. United States, 240 U. S., 1, 24. 


3, 411. 


y 



14 WAR POWERS UNDER THE CONSTITUTION. 

It has been said that the constitution inarches. That is, there 
are constantly new applications of unchanged powei's, and it is 
ascertained that in novel and complex situations, the old grants 
contain, in their general words and true significance, needed and 
adequate authority. So, also, we have a fighting constitution. We 
can not at this time fail to appreciate the wisdom of the fathers, as 
under this charter, one hundred and thirty years old—the constitu¬ 
tion of Washington—the people of the United States fight with the 
power of unity—as we fight for the freedom of our children and 
that hereafter the sword of autocrats may never threaten the world. 

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